Bill's Media Releases

Government implements first tranche response to Fair Work Act Review

Minister for Employment and Workplace Relations Bill Shorten today announced the Government would implement a first tranche of recommendations arising from the independent Fair Work Act Review (the Review).

 The Review Panel found that the Fair Work Act is operating as intended and in accordance with the objects of the legislation.

 “Since releasing the report, I have consulted a range of stakeholders about the Review Panel’s recommendations, including  unions and employer representatives, small business and individual employers.  I have also consulted with my State and Territory colleagues, the President of Fair Work Australia and the Fair Work Ombudsman,” Mr Shorten said.

 “I want to thank again all stakeholders for their contributions to the discussion about the Review recommendations.

 “From my consultations so far, it is clear that there is broad support for around one third of the Review’s 53 recommendations.  It is also clear that there is diverging views on the remaining recommendations.

 “The Government has therefore decided to proceed with amendments to the Fair Work Act to immediately implement recommendations that are broadly supported, including a number of technical amendments, while continuing to consult with stakeholders on the remaining recommendations as I have previously committed to doing.

“The amendments I have announced today also include important recommendations covering unfair dismissal and structural arrangements and processes for Fair Work Australia.

 The Government also intends to include changes to the Fair Work Act to implement a number of recommendations arising from the Productivity Commission’s final report into default superannuation funds in modern awards, subject to further consultation with industry stakeholders and members of the National Workplace Relations Consultative Council (NWRCC).

 “Whilst the Government is committed to introducing these amendments to Parliament this year we will continue to talk with all stakeholders with a view to implementing our response to independent Review Panel’s remaining recommendations,” Mr Shorten said.

 Prior to introducing the legislation into the Parliament, the Government will undertake a Committee of Industrial Legislation process where members of the tri partite NWRCC, other experts and State and Territory Governments will be able to consider and provide input on the draft legislation prior to it being introduced into the Parliament. 

 Minister Shorten noted the Government’s open, considered and consultative approach was in stark contrast to the Opposition’s lack of a clearly defined policy in workplace relations.

 “The Liberal Party has had its industrial relations policy in witness protection since its last policy was resoundingly rejected in 2007.

 “Given the Opposition’s Workplace Relations Spokesman has said he supports the overwhelming majority of the Panel’s recommendations and has called on the Government to hasten it’s response, I don’t see why the Opposition would delay passage of this tranche of legislation this year”, Mr Shorten said.

 A summary of the items to be included in the first tranche response are below.

 Minister Shorten’s Media Contact: Sam Casey—0421 697 660




The Panel recommends that the FW Act be amended to expressly empower FWA to strike out an award variation application that is not made in accordance with the FW Act, is frivolous or vexatious or which has no reasonable prospects of success.


The Panel recommends that s.160 be amended to provide that the parties entitled to bring an application to make, vary or revoke a modern award under s. 158 can also apply to vary a modern award to remove an ambiguity or uncertainty.


The Panel recommends that s.238(3) be amended to require an applicant for a scope order to ‘take all reasonable steps’ to notify all other relevant bargaining representatives of the application.


The Panel recommends that s.174 be amended to provide that a bargaining notice must address only the matters specified in that section and the regulations made under it.


The Panel recommends that s.176 be amended to prevent an individual union official being a bargaining representative for employees for whom the official’s union does not have coverage.


The Panel recommends that the FW Act be amended to prohibit enterprise agreement clauses which permit employees to opt out of the agreement.


The Panel recommends that the FW Act be amended to prohibit the making of an enterprise agreement with one employee.

(a) – (d)

The Panel made four recommendations regarding protected action ballots.  Two technical amendments regarding the conduct of protected action ballots and two amendments to clarify who can be included on the roll of voters for a protected action ballot.


The Panel recommends that the time limit for lodging unfair dismissal applications should be extended to 21 days (to align with the recommended amended time limit for general protections claims involving a dismissal).


The Panel recommends that the FW Act be amended to give FWA the discretionary power to dismiss applications under s. 394 in circumstances where the parties have concluded a settlement agreement, or where an applicant fails to attend a proceeding relating to the application, or where the applicant fails to comply with FWA directions or orders relating to the application.


The Panel recommends that the FWA President give consideration to requiring applicants to provide more information about the circumstances of the dismissal in the initial documentation lodged with FWA.


The Panel recommends that the FW Act be amended to allow FWA to make costs orders against a party that has unreasonably failed to discontinue a proceeding, or that has unreasonably failed to agree to terms of settlement that could have lead to discontinuing the application, or that has through an unreasonable act or omission caused the other party to incur costs.


The Panel recommends that s. 401 be amended to allow FWA to make an order for costs against a lawyer or paid agent whether or not FWA has granted permission for the lawyer or agent to represent a party in the relevant application.


The Panel recommends that s. 366 be amended to reduce the time limit for lodging a general protections claim relating to a termination of employment to 21 days (to align with the recommended amended time limit for unfair dismissal applications).


The Panel recommends that the FW Act be amended to change the name of Fair Work Australia to a title which more aptly denotes its functions. It is recommended that the new title contain the word ‘Commission’ and that it no longer contain the words ‘Fair Work’.


The Panel recommends that s. 660 of the FW Act be amended to require that the appointment of the General Manager by the Governor-General be on the nomination of the President.


The Panel recommends that the FW Act be amended to allow the President or any Deputy President to stay the operation of a decision under appeal or review, whether or not the President or Deputy President is a member of the Full Bench hearing the appeal or conducting the review.


The Panel recommends that the power to appoint Acting Deputy Presidents for specified periods in s. 648 be extended to the appointment of Acting Commissioners.


Other matters relating to FWA


Appointment of Vice Presidents These amendments would enable the appointment of two full time Vic-Presidents to the tribunal.
Complaints Handling Process This would be broadly modelled on the Courts Legislation Amendment (Judicial Complaints) Bill 2012.  The amendments would provide the President with powers to deal with a complaint against a Member as well as an independent process to deal with complaints against the President.
Conflict of interest The existing conflict of interest provisions in s. 640 would be clarified to provide that potential conflicts of interests be also disclosed to parties and other persons with sufficient interest in the proceedings (eg someone who can make submissions) rather than just the President.  The President would also be required to have regard to potential conflicts when allocating matters.
Referral of matters to a Full Bench These amendments would allow a party to proceedings or the Minister to refer a matter to a Full Bench on the basis that the matter is important and it is in the public interest for a Full Bench to hear the matter.
President taking over a matter These amendments would involve giving the President the power to take over a matter in certain circumstances.